Judge in Indiana grants same-sex divorce

BLOOMINGTON – The mood was festive as Monroe Circuit Judge Valeri Haughton spent the morning of June 26 presiding over marriage ceremonies for gay couples who rushed to the courthouse here after a federal judge struck down Indiana's ban on same-sex marriage.

That afternoon, the judge took on a more somber task — and one likely in the cards for at least some of the couples who she had just married.

Haughton granted the state's first sanctioned same-sex divorce.

The ruling — which came during a three-day window last week when same-sex marriage was legal in Indiana — brought an official end to the broken personal and legal relationship of former Indianapolis residents Melanie Davis and Angela Summers.

While the timing of the divorce ruling amid the gay-marriage window was coincidental, the couple's long, tangled journey through the Indiana court system reveals the challenges ahead for other married same-sex couples should they seek a divorce in Indiana.

In fact, legal experts say, it may be years before another same-sex couple is able to secure a divorce in the state.

Indiana law makes no provision for legally ending same-sex marriages. The rationale is simple and circular: Since same-sex marriage is not permitted or recognized in Indiana, there is no marriage to dissolve.

But that law does not jibe with the realities of lives in Indiana, where Hoosier couples for a decade have married in other states that allow same-sex marriage and hundreds more wed in the state last week after U.S. District Judge Richard Young ruled that Indiana's ban on gay marriage is unconstitutional.

The in-state weddings were stopped after the state attorney general filed an appeal and won a temporary stay from the 7th Circuit Court of Appeals blocking Young's order that county clerks begin issuing marriage licenses to same-sex couples. But Indiana couples can still get married in other states, and the confusing and complicated legal status of married gay couples seeking to divorce in Indiana probably will not change until the U.S. Supreme Court issues a final ruling to resolve the increasingly contentious national debate about gay marriage.

"My concern," said Indianapolis attorney Kathy Harmon, a certified family law specialist, "is what happens if it takes years to work through that process."

Legal complications

Judge Haughton did not break state law, nor did she violate any ethical rules, when she granted the divorce.

Haughton was, in fact, acting at the direction of the Indiana Court of Appeals — after she had initially refused to grant the couple a divorce because of Indiana's ban on same-sex marriage.

It was the unique, individual circumstance in the marriage of Davis and Summers that allowed them to divorce. There were plenty of complications along the way.

The biggest: When the couple married, Davis was a man — David Paul Summers.

Davis, who said she was born "intersex" — which the Intersex Society of North America describes as "conditions in which a person is born with a reproductive or sexual anatomy that doesn't seem to fit the typical definitions of female or male" — said she always identified as female. And, she said, she came out to her bride-to-be about two years before they married.

Summers could not be reached for comment, and her attorney did not respond to a request from The Indianapolis Star for comment.

Still, Davis said, the couple stayed together and married in 1999. Davis said they decided to marry while she was still legally considered a male to secure the benefits of marriage. Around that same time, Davis began to transition to living as the female she felt she had always been.

In May 2005, Davis — then still the male Summers — filed paperwork in Marion Circuit Court seeking to have her name and the gender listed on her birth certificate changed.

Before the court could rule on that request, Angela Summers gave birth to the couple's child.

In September 2005, the court granted the name change request, and David Paul Summers became Melanie Lauren Artemisia Davis. But because of what Davis said was a paperwork error, the court did not order a change to her birth certificate. So Davis remained — legally, at least — a man despite dressing and living as a woman.

The couple separated in early 2008. Davis said their problems revolved around communication and money issues — the kinds of issues most couples struggle with.

In October 2008, the Marion Circuit Court issued an amended order that changed the gender designation on Davis' birth certificate.

The man, David Paul Summers, was no more. Going forward, Davis was legally a woman.

Gender issues

The couple shared legal custody of their daughter, with the child staying most of the time with Davis, as they moved on with their now separate lives.

In October 2008, realizing their marriage was irrevocably broken, Davis filed for divorce in Monroe County, where she had moved with the couple's daughter.

That is when thing got even more complicated, particularly in the eyes of Indiana law.

The case landed in Haughton's court, and in March 2013, the judge issued an order refusing to grant the divorce. The judge's reasoning: the couple's marriage became void, because of Indiana's same-sex marriage ban, on Oct. 21, 2008, the day Davis legally became a woman.

"Melanie Lauren Artemisia Davis (formerly David Paul Summers) a female was prohibited for being married to Angela Summers, also a female," the judge wrote in her order.

"Under the specific facts and circumstances before us in this case, a marriage between a man and a woman that was valid when it was entered into does not automatically become void when one of the parties has his or her birth certificate amended to indicate a change of gender," the Court of Appeals order said.

"The statute prohibiting same-sex marriage does not apply to the particular set of circumstances in this case because the parties did not enter into a same-sex marriage in Indiana or into a same-sex marriage that was solemnized in another state."

The appeals court sent the case back to Haughton to move ahead with the divorce.

Haughton declined to talk about details of the case Thursday but did say the court of appeals ruling "was a bit of a surprise to me." The timing of the final divorce hearing also created a unique situation, the judge said.

"It was a little ironic," she explained. "Last week I did about 20 marriage ceremonies for same-sex couples and in the midst of that I did what was probably the state's first same-sex divorce."

'Bound to fail'

Amid the joyous atmosphere in courthouses across Indiana last week as gay couples rushed to marry, few were likely thinking about the possibility of divorce.

But if the experience of heterosexual couples is any indicator, that is a reality. Nationally, experts estimate that 40 to 50 percent of first marriages end in divorce.

Harmon, the certified family law specialist, said the issue of same-sex divorce will become bigger over time. A same-sex couple is currently attempting to end their marriage in Allen Circuit Court.

"There are same-sex couples from Indiana who were legally married in other states and couples who got married in Indiana last week, and some of those marriages are bound to fail," Harmon said. "What we're all doing is waiting to see how all this plays out. Good, bad or ugly, we just need a decision."

Harmon and other legal experts noted married gay couples who separate, but don't divorce, face many potential hurdles and pitfalls.

There are tax issues and questions about a spouse's liabilities for the other spouse's debts. There are questions about parental rights, including child custody and support. And there are questions about Social Security and insurance benefits. All, for the time being, remain unanswered.

"This creates a whole host of issues," she said, "that no one has fully looked at."